2013-DEC-31: State of Utah asks the U.S. Supreme Court to issue a stay:

On DEC-31, The State of Utah asked Justice Sonia Sotomayor to issue a stay to stop further same-sex marriages in the Utah. 1 Utah said that the flood of marriages is:

"... "an affront ... to the interests of the state and its citizens in being able to define marriage through ordinary democratic channels." 2

That seems to be a strange claim. Nobody is saying that the people of Utah and the Utah legislature cannot define who is eligible to marry in the state. The matter that is under question is whether the existing 2004 amendment to the state Constitution that prohibits loving, committed same-sex couples from marrying conflicts with Amendment 14 of the U.S. Constitution which guarantees all Americans equal treatment and access.

"ChuckAnziulewicz" posted a comment to the CBS News article:

"It was never the job of [District Court] Judge Robert Shelby to uphold the precise will of the majority of the people. ... The job of the courts is to uphold the Constitution, regardless of whether the necessary decisions fall in line with the will of the majority. It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection. It seems more than obvious to me that to exclude Gays from the institution of marriage is a clear violation of any notion of "equality," and I have yet to see anyone dispute that on a rational level. Therefore, it is not "activism" nor oligarchy on the part of judges to declare that Gay and Straight couples should be treated equally under the law, rather it is an example of judges performing their rightful duty." 3

Justice Sotomayor handles emergency legal applications from Utah and surrounding states. She asked the three same-sex couples to respond to Utah's request by Noon EST on JAN-03.

2014-JAN-02: Strange development in the Utah legislature:

The Rainbow Times reports that the Utah legislature is preparing a brand new constitutional amendment to be submitted to the voters on some future election day. It would guarantee that no church would be under any obligation to marry any couple that does not meet the religious requirements of the church. State Senator Jim Debakis, who is openly gay, told the Salt Lake City Tribune that he doesn't know of anybody who wants to force churches to perform ceremonies against their religious beliefs. 3

The strange feature of this amendment is that it is totally redundant. Churches and their clergy have been free for centuries -- ever since the First Amendment to the U.S. Constitution was written -- to refuse to marry couples for any reason. To our knowledge, no clergyperson or congregation has ever been found guilty of discrimination or has even been charged with discrimination during the past two hundred years for rejecting a couple who wants to get married.

The First Amendment creates a "wall of separation between church and state." In the past, clergy have routinely denied marriage to couples who followed the wrong faith group, or were of multiple faiths, or were regarded as too immature for marriage, or are of the wrong skin color, or are an interracial couple, etc. The Roman Catholic church has even denied marriage to couples who were otherwise qualified but where one partner was physically disabled and thus unable to procreate.

One would think that the legislators and Attorney General's office would be aware of the principle of separation of church and state, and of the absolute guarantee it offers to all clergy, congregations, and denominations. Perhaps the new amendment is being proposed simply to satisfy the voters that the Legislature is taking an active role in preventing same-sex marriages, even though their proposed amendment is a useless distraction and a total waste of time and money.

2014-JAN-02: Same-sex marriages continue in Utah:

Local media is reporting that during the 2 weeks following the legalization of SSM by the federal District Court, some 700 to 900 marriage licenses have been issued to same-sex couples. Presumably most of these couples would be married by now.

2014-JAN-03: Attorneys for plaintiffs file response to state's request for a stay:

In their submission to the U.S. Supreme Court, the lawyers opposed the granting of a stay for a number of reasons:

The District Court, acting on the same request for a stay, has already refused it.

The 10th Circuit Court of Appeals has refused three requests for a stay.

In its decision in the United States v. Windsor case, the U.S. Supreme Court affirmed that state marriage laws must comply with the U.S. Constitution. That decision:

"... supports invalidation of Utahâ€™s refusal to recognize the lawful marriages of same-sex couples who married in other states."

A stay is not really needed because the Court of Appeals has set in motion an expedited schedule to rule quickly on the lawsuit. Involved parties must submit their briefs on or before the end of 2014-FEB.

Both the District Court and Court of Appeals have indicated that the probability of the state winning the appeal is remote.

The plaintiffs' brief stated that:

"Throughout their application, [the State of Utah attorneys] fail to acknowledge or apply the heightened burden they must meet when asking this Court to grant a stay in a case still pending before the Court of Appeals."

The plaintiffs asserted that the State had not shown that the Court of Appeals was "demonstrably wrong" in denying the stay or that the state would be "seriously and irreparably injured [without] the stay."

The State claims that allowing same-sex couples to marry now would significantly harm the couples in the future if the higher court were to overturn the District Court's ruling and revoke the couples' marriages. The plaintiffs pointed out that the state's case makes no sense. The state believes that to be stripped of the benefits of marriage at some future date would cause profound, irreparable harm to the couples. But then it advocates taking exactly that action now. 7

Brooke Adams of the Salt Lake Tribune reported that District Court Judge Shelby:

"... determined that in previous rulings, the U.S. Supreme Court recognized the freedom to marry as a fundamental right based on individual rights to liberty, privacy and freedom of association â€" rights that under the 14th Amendment supersede statesâ€™ rights when there is a conflict between the two. Shelby also found the state did not present even a rational basis, the lowest standard of review, for denying same-sex couplesâ€™ right to marry..."

"These precedents strongly support the district courtâ€™s determination that persons in same-sex relationships have fundamental interests in liberty, privacy and association that are infringed by state laws categorically barring them from the right to marry," the [plaintiffs'] attorneys said.

Shelbyâ€™s ruling also noted that the state failed to show a 'rational link' between a ban on same-sex marriage and its interest in having children raised by opposite-sex, married couples. But he did find that laws barring same-sex marriage harmed children in such households 'for the same reasons that the Supreme Court found that [the federal] DOMA [law] harmed the children of same-sex couples.'

While Windsor did not decide the 'ultimate' issue of whether a state is constitutionally required to let same-sex couples marry or to recognize their existing marriages, its reasoning and analysis 'strongly' support the conclusions reached by the lower courts in declining to issue a stay, the attorneys said." 4

Justice Sotomayor, who handles emergency appeals from the 10th Circuit Court of Appeals, can decide whether to create a stay. By tradition, the losing party could later appeal her decision to the full Supreme Court. Alternately, she can refer it to the full court for a decision.

Carl Tobias, is a specialist in the federal court system and a law professor at the University of Richmond. He predicts that a stay is unlikely for a number of reasons:

"Some have to do with judicial economy and respect for lower court rulings at this preliminary stage and others of which may have to do with the merits, as reflected in [the United States v. Windsor case]. It may be difficult to secure five votes for a stay, especially if five justices in the Windsor majority believe that its reasoning applies in this case." 5

In its application for a stay, the State of Utah pointed out that this case:

"... squarely presents the question that this court expressly left open"

in U.S. v. Windsor Â­â€" i.e. whether states can prohibit same-sex couples from marrying within the state and whether the state can refuse to recognize marriages solemnized elsewhere. By declaring Section 3 of the federal Defense of Marriage Act to be unconstitutional, it
preserved state authority to regulate and define marriage.

The fundamental question seems to be whether the voters of the state can pass a state constitutional amendment that excludes any unfavored group from marriage. If the State of Utah were a pure democracy, the answer would be yes, because the will of the majority will always rule. However, the State of Utah and the United States itself are not pure democracies. In reality, they are constitutional democracies. All of the state's laws and constitutional amendments must meet federal constitutional requirements. In this case, the requirements are the equal protection clause of the 14th Amendment to the U.S. Constitution. It is obvious to many observers that that the State of Utah fails this requirement. If that is true, then the constitutional amendments in 28 other states that ban same-sex marriage may be on shaky grounds as well.